RPT-ANALYSIS-In Apple vs Samsung, alchemy of damages takes the stage

August 23, 2012|Reuters

Musika also handed the jury another option to computeSamsung's tab, based on the Korean company's profits, anapproach that would ramp up the potential payday. Musika peggedSamsung's gross profit margins for the phones at issue in thelawsuit at 35.5 percent, or more than $2.2 billion.

Judges are allowed to bar experts based on problems withtheir methods. In Oracle's copyright battle against Google, forinstance, U.S. District Court Judge William Alsup forced Oracleto rework its damages arguments more than once.

But while judges can bar an expert if they think his or hermethods are bogus, they are supposed to let jurors sort out theassumptions. Samsung's expert, Michael Wagner, criticized Musikafor failing to account for marketing, R&D and other costs thatwould reduce Samsung's profits. Wagner's scenario put Samsung'svulnerable profits at $519 million.

Patent damages expert Epstein said good experts only go sofar when devising numbers for their clients.

"I tell them, I'm perfectly happy to consider any damagestheory, but then I ask myself, What questions does such anapproach raise?" Epstein said.

"If I don't have a principled answer, there's a line beyondwhich you can't go."

The case in U.S. District Court, Northern District ofCalifornia, is Apple Inc v. Samsung Electronics Co Ltd et al,No. 11-1846.